Arizona Binghampton Copper Co. v. Dickson

• Decision Date: 17 February 1921
• Docket Number: Civil 1852
• Citation: 22 Ariz. 163,195 P. 538
• Parties: ARIZONA BINGHAMPTON COPPER COMPANY, a Corporation, Appellant, v. GEORGE M. DICKSON, as Administrator of the Estate of HARRY A. DICKSON, Deceased, Appellee
• Court: Arizona Supreme Court

195 P. 538

22 Ariz. 163

ARIZONA BINGHAMPTON COPPER COMPANY, a Corporation, Appellant, v. GEORGE M. DICKSON, as Administrator of the Estate of HARRY A. DICKSON, Deceased, Appellee

Civil No. 1852

Supreme Court of Arizona

February 17, 1921

APPEAL from a judgment of the Superior Court of the County of Yavapai. John J. Sweeney, Judge. Affirmed.

STATEMENT OF FACTS.

Appellee administrator, as plaintiff below, brought suit against appellant, defendant below, charging the latter with acts of negligence that resulted in the death of Harry A. Dickson his intestate, to the damages of the estate. The case was tried before a jury, and the jury, after hearing the evidence and the arguments of counsel, under instructions to which no exceptions are taken, returned a verdict for $15,000, and judgment was entered for that amount in favor of plaintiff. The defendant appeals.

The pleadings and evidence show the following state of facts Defendant copper company, prior to July 12, 1919, had partly constructed an upraise in its mine from the 600-foot level to the 400-foot level. The work had been done under contract the defendant furnishing all tools, materials, appliances, and instrumentalities, and the contractor doing the work of constructing the upraise. On that date 130 feet of the upraise had been completed, there remaining about seventy feet to be done. The upraise was 7x19 feet, and on each end thereof as the work progressed a manway 3x3 feet was erected, in one of which a ladder was placed for the use of workmen in going to and from their work in the upraise. The middle space -- that is, the space between the manways -- was intended and used for a chute through which rock and waste escaped and fell from the roof of upraise as it was shot or blasted. The ladder consisted of 2x4 inch uprights on which were nailed 1x3 inch crosspieces or rungs one foot apart, the extremities of which rested in notches cut in the face of the ladder, so that the rung, when in place, was flush with the face of the uprights. The defendant furnished the ladder to the contractor in sections ready to be put up, and it was erected by placing these sections end to end. Prior to July 12th no bulkhead was placed over the manway containing the ladder, and, as a consequence, rock and waste blasted or broken from face of upraise would fall down the manway and strike and break the rungs in ladder and sometimes destroy whole sections thereof. When the ladder was broken or injured, the contractor would repair it. If rungs were broken, he would replace them with new rungs, nailing them to the uprights in the same places the broken ones were nailed, or, if necessary, he would use a new section. Up about fifty feet from the 600-foot level there was a bulge in the cribbing, and the ladder was repeatedly struck and broken. The contractor testified that at this point "the ladder was apparently all right, but it was weak because it had been nailed in so many different times, and I was figuring that I would have to put in a new ladder any time." July 12th the deceased and Mike Baker entered into a contract with defendant to extend the upraise from the 130-foot point to the 400-foot level, or a distance of seventy feet, the defendant to furnish tools, material, and appliances, including ladder in manway. As before stated, there had not been theretofore any bulkhead over the manway containing the ladder, but Baker and deceased insisted that a bulkhead should be placed over this manway, and it was done by them on the company's time. Baker, who carried on the negotiations with defendant's superintendent, testified that the latter said to him, "'Everything is ready to go to work.' I said, 'No; I want to fix the ladder.' He said, 'The ladder is all right.'" In this statement Baker was corroborated by one or two witnesses. The superintendent denied making it. Baker further testified:

That before he and intestate went to work "I climbed the ladder and tested the rounds as I climbed by pulling on them, and fixed four rounds about twenty feet above the 600-foot level. I examined the ladder in the manway throughout its entire length, and I was unable to observe any defect in the ladder. My belief that the ladder was in good condition and reasonably safe was based on my inspection of the ladder and upon what Chaney [mine superintendent] told me. There was no indication that it was in a weakened or defective condition at any point."

He further said, if the rungs had been nailed and renailed on the ladder, it would not have been disclosed to him for the reason that it was dark in the manway; that the broken parts of scantling would be covered by the rungs and could not be seen. Baker finished his shift at 4 o'clock in the morning of July 16th, and when he descended the ladder "it seemed to be all right." No rock fell down the manway from the shooting of holes made by Baker on his shift just before the accident and after he had descended.

The deceased started to work -- this being his third or fourth shift -- at 9 o'clock the morning of the 16th, and with him was one Chapman. They were not seen again until the superintendent of defendant's mine, who was standing near the base of upraise, heard them fall and "light on the bottom of the upraise and hit the bulkhead." He immediately went to them and found deceased lying on top of Chapman unconscious. Neither lived to tell how the accident happened.

The search for the cause of the fall was deferred for some time pending the arrival of the State Mine Inspector, but there is no serious contention that the condition of the ladder had been changed. Four rungs of the ladder about fifty feet above the bottom of upraise, the examination showed, were broken in two in the middle, and another (the one immediately above the broken ones) was pulled loose from the side of the ladder at one end, the nails being pulled out with the rung. The upright timber at the point where the end of the rung pulled loose was wet and rotten and badly splintered from being nailed and renailed, but this condition could not be seen as long as the end of the rung was in place.

The defendant had no actual knowledge of the condition of the ladder, although its superintendent had actual charge of the mine, both above and below, and was in active charge of upraise during its construction. The defense pleaded was assumption of risk, contributory negligence, and general denial.

Mr. Le Roy Anderson and Mr. G. P. Bullard, for Appellant.

Messrs. O'Sullivan & Morgan, for Appellee.

OPINION

ROSS, C. J.

(After Stating the Facts as Above.) At the close of plaintiff's case the defendant moved the court for a directed verdict "for the reason that the evidence wholly failed to show that the death of plaintiff's intestate occurred through any negligence on the part of appellant." The refusal to grant this motion is assigned as error. A motion of this kind is regarded as admitting the truth of whatever competent evidence the opposing party had introduced, and challenging its sufficiency to support a verdict. If, therefore, the plaintiff's evidence and the reasonable inference therefrom, considered, as they must be on this motion, in the strongest light against the defendant, were sufficient to support a verdict, the motion was properly overruled. It is only where the evidence is insufficient to support a verdict, or where it is so weak that upon a motion for a new trial after verdict the court would feel constrained to set it aside, that the court is justified in directing a verdict. Stanfield v. Anderson, 5 Ariz. 1, 43 P. 221; Root v. Fay, 5 Ariz. 19, 43 P. 527; Roberts v. Smith, 5 Ariz. 368, 52 P. 1120; Haff v. Adams, 6 Ariz. 395, 59 P. 111; White Sewing Machine Co. v. Bradley, 16 Ariz. 338, 145 P. 725; 26 R.C.L. 1065, §§ 74, 75; 38 Cyc. 1565 et seq.

In view of the rule stated, we think the court very properly refused to grant the motion for an instructed verdict. The assignment is very general and indefinite, but we are informed by the brief and argument thereon that it is the contention of defendant that "liability for negligence is not imposed in a case of this character because of the existence of a condition not discoverable by the exercise of ordinary care and diligence," and that it is not shown "that the ladder was in a defective condition when intestate entered upon the contract, and that he has wholly failed to show that defendant, by the exercise of ordinary care or diligence on its part, could have discovered any defect in the ladder." The defendant contents itself by the statement of these propositions without calling our attention to any governing rule as applied to this kind of a case. These contentions suggest an inquiry into the "character" of the case and the principles of law governing in its disposition. The defendant, under the contract as alleged and proved, obligated itself to furnish plaintiff's intestate and Baker, his partner, among other things, a ladder to be used by them in going to and from their work in upraise, the contractors to do all the work. This ladder, about 130 feet high, was in manway when the contractors took possession and began the execution of their contract. It was not constructed by defendant, but by a contractor or contractors of defendant who had worked on upraise before deceased and Baker started to work under their contract. Neither deceased nor Baker had anything to do with the construction of the ladder. It was defective, and, although Baker had inspected it, on account of the defect being hidden, he had failed to discover it. While deceased was ascending the ladder to go to work, he fell, and it is the theory of plaintiff that the cause of his fall was due to the defective condition of the ladder, and that the defendant is...